JUDGMENT GUL ZARIN KIANI, J.- Mst. Zaib-Un-Nisa plaintiff instituted a suit for jactitation of her marriage with Sikandar and admitted it with Muhammad Azam. She along with Muhammad Azam was accused in a Hudood case of Zina and also a case under Sections 468/420 P.P.C., in respect of fabrication of her Nikahnama with Muhammad Azam. Secretary, Union Counsel was also a. Co- accused with them. Defendants to the suit, namely, Sikandar and Muhammad Azam, gave separate defences. Sikandar asserted his valid marriage with the plaintiff and Stated that she was his lawfully wedded were and her alleged marriage with Muhammad Azam was a false assertion and concoction. Muhammad Azam admitted his marriage with the plaintiff and claimed her as his legal were. Nikah with Muhammad Azam was performed on 24.8.1976. Nikahnama was Exh. P.1 on file. As regards Sikandar, his marriage with the plaintiff was statedly performed on 16.7.1979.
Nikahnama was Exh. D.1. In both the Nikahnamas, Mian Muhammad Alam father of the plaintiff was shown to have acted as her Wakeel. Nikah with Muhammad Azam was performed by Rehmat Khan, Nikah Khawan, whereas Nikah with Sikandar was solemnized by Nikah Khawan Syed Abbas Shah. Neither of them; namely, Rehmat Khan and Syed Abbas Shah appeared at the trial to support performance of respective Nikahs by them.
Pleadings gave rise to following issues for determination in the suit for jactitation:-
1. Whether the suit is maintainable in its present form based on preliminary objections No. 1 and 2?
2. Whether the defendant No. 2 has maliciously been involved in this case as defendant?
3. Whether Nikah with Muhammad Azam is against the principles of law, its effect?
4. Whether the plaintiff is entitled to the decree as claimed for in the main suit?
5. Relief.
2. In support of above issues, both sides gave evidence and produced in evidence their respective Nikahnamas and also a copy of an F.I.R. Upon review of the evidence, trial Court found that the plaintiff was lawfully wedded with Sikandar and her marriage with Muhammad Azam was not proved. As a consequence of it, it dismissed the plaintiffs suit, on 24.4.1988. Appeal filed from the decision of the Additional District Judge, Gujrat. Thereupon, instant writ petition was filed in this Court. It was admitted to hearing on 11.11.1990. Petitioner is represented by Sh. Naveed Shehyar Advocate. Sikandar respondent No.1 was assisted by Ch. Muhammad Hussain Ahsan, Advocate.
Despite sufficient service, Muhammad Azam respondent No.2 did not appear at the hearing.
Therefore, writ petition was heard in his absence.
3. Upon hearing both the sides, impugned orders deserved to be set aside for a retrial of the suit on proper issues on the basis of existing record and, if need be, on additional material to be taken from the parties. Reasons for retrial were more than one. Some of them were:-
(i) F.I.Rs. Were not substantive evidence of the contents in them;
(ii) Inquiry report by the Deputy Commissioner was not on record. Its author and the evidence taken in it were not produced at the trial; (i.e) Different standards were applied by the lower Courts for judging the genuineness of the respective conflicting Nikahnamas. Approach and reasoning was discriminatory;
(iv) Point at issue was the factum and validity of the marriage of the plaintiff with Sikandar and the genuineness of his Nikahnama with her. It receded in the background and the marriage of the plaintiff with Muhammad Azam admitted inter-se between the parties gained prominence at the trial.
4. Further more, vital issue necessary for decision of the jactitation-suit was not framed. As said above, plaintiff denied her marriage with Sikandar. Latter asserted it and relied upon a Nikahnama.
In case of a serious dispute on point of marriage between the parties, it was for Sikandar- defendant to affirmatively prove lawful marriage between them. Instead of framing a proper issue; "Whether the plaintiff was lawfully wedded to Sikandar with onus of its proof upon him", the trial Court threw the burden of proof to prove negative of the marriage. It resulted not only in an erroneous decision of the family suit but also caused grave miscarriage of justice. Trials in the Hudood case and the case relating to forgery were stayed. Meanwhile, eight long years were avoidably wasted. Plaintiff resided with her professed husband, namely, Muhammad Azam. On record, there was no indication about the birth of any child from their professed marriage. None- the- less, the plaintiff was locked in litigation and was a serious bone of contention between two contenders for her person. The agony and the result of controversy were too obvious to be commented upon. It could easily be imagined and also visibly felt by an understanding mind. In view of the proposed order for a remand of the suit for its retrial, I shall say little on merits of the record to avoid prejudging the issues requiring decision In the suit for leaving full independence to the trial judge for deciding, the suit afresh on its merits Without being inhibited by any observations from this court. Otherwise, the learned counsel for the plaintiff had commented upon the sufficiency and plausibility of the evidence going in support of marriage by Sikandar. The contention was that it was totally inadequate to prove his marriage. Its merits shall be examined by the trial Court. My on view of the record was that the suit was defectively tried. I was not convinced of the merits of the decision also. Sikandar was real nephew of the father of the plaintiff.
Therefore, appearance of the father of the plaintiff as a witnesses against her was much over- emphasised. Witness to the marriage noticed in the Nikahnama were not produced at the trial.
Other items of evidence were also withheld. Nikahnamas were allegedly thumb impressed by the plaintiff. No serious effort was made to identify her thumb-impressions. In extra ordinary jurisdiction, findings on question of fact recorded by the lower courts could not be substituted nor an opinion given on adequacy of evidence. These were the matters for decision by the Courts invested with jurisdiction to decide on them i.e. The Family Court and the court sitting in appeal on its judgment, I would, therefore, simply set aside the impugned judgments; declare them to have been made without lawful authority and direct retrial of the suit by the trial Court in accordance with law and the observations made above. The trial Court shall and an issue in the affirmative from, regarding alleged marriage, of the plaintiff with Sikandar-defendant by putting its onus of proof upon him and if need be to allow the parties an opportunity of giving evidence in support of it. It shall be open to the trial Court and also the parties to and evidence to the existing record for proper decision of the suit for jactitation of marriage. Costs to be borne as incurred. Parties shall appear before the trial Court on 21.12.1994. Since the dispute was in suspense for quite a long time, the trial Court shall expedite final decision in the suit preferably within six months from the date of appearance of the parties before it.